Monday, January 29, 2007

Free Speech defence of QC's 'public' comments out of step with reality

More in from A Diary of Injustice in Scotland

The new rule of free speech, dictated by the Law Society of Scotland, says it's acceptable for the press to report on cases of complaint against crooked lawyers, as long as the tone of the story is sympathetic to the legal profession. Even better if the report is written by a lawyer who has a column in a newspaper.

The new rule of free speech, dictated by the Law Society of Scotland, also says it's not acceptable, for stories to be reported on cases of complaint against the legal profession, if the story comes from the client or 'has a moderate chance of gaining public sympathy against for victims of crooked lawyers'.

This certainly seems to be the rules which the Scotsman are operating under in recent years, as opposed to more impartial times, when they extensively covered my case against crooked Borders lawyer Drew Penman of Stormonth Darling Solicitors, Kelso, and quite a few other cases of crooked lawyers embezzling as much as they could from clients funds - even with the occasional agreeing editorial that self regulation & the Law Society of Scotland should be consigned to the dustbin of history,

However, times change, as we all know, and with two well placed articles in the Scotsman newspaper on Thursday, 25 January, the legal profession seem to be rallying support around one of Scotland's more famous Advocates over charges of making alleged sectarian comments which to most, if investigated and found to be true, by an impartial & independent regulatory body, would bring the profession into disrepute.

In the first of two articles, Campbell Deane, a media lawyer with Bannatyne Kirkwood & France, who also has a column in the Scotsman newspaper, wrote of his 'element of sympathy' for Donald Findlay's famous remarks in the 'smokey-pope' joke, in a somewhat bizarre article on the defence of Free Speech : Have you heard the one about freedom of speech?

Alan Massie then went on in a second article, to have another go at the case involving Findlay, with comments which compare favorably with Campbell Deane's version, but tackling the "PC' or political correctness angle : Having the last laugh at PC brigade

While Campbell Deane can write 'anything but', under a headline of 'Free Speech', things were very different only a few weeks ago, where Deane's professional boss - Douglas Mill, Chief Executive of the Law Society of Scotland, recently threatened the Scottish Parliament's right of free speech & right to determine law, with Court Action if it didn't amend certain parts of the pro consumer Legal Profession & Legal Aid (Scotland) Bill, which brought independent regulation to Scotland's corrupt legal profession.

The reason that Douglas Mill, Chief Executive of the Law Society, didn't like the LPLA Bill, was that it took away the right of lawyers to fiddle complaints against other lawyers - something which has been going on in Scotland for decades. I don't remember hearing Mr Deane saying anything bad about that one, but I'm sure he would probably defend the legal profession's right to Free Speech against anyone who would allege corruption, even when there is a mountain sized box of evidence to support it.

I covered Douglas Mill's threat to the Scottish Parliament here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

Campbell Deane is no stranger to the arguement of free speech ... having twice taken the Sunday Herald newspaper to Court for Lord George Robertson over allegations in a forum posting on matters surrounding the Dunblane massacre. There was a settlement in the first action for Lord Robertson (although it denied Deane his claim of a wide ranging ruling against online free speech which he told us to expect in one of his Scotsman articles), and of course, Lord Robertson lost the second action against the Sunday Herald, with the Court of Session dismissing his case.

I reported on some of that here : A rare day of common sense in the Scottish Courts

Deane, also, of course, was also quite famously, part of Tommy Sheridan's legal team in the News of the World libel case, but was then allegedly sacked, after Sheridan's Counsel accused a witness of having a criminal record, when she did not.

The incident involving Sheridan's Advocate & the false accusations in Court, turned into a complaint against Deane, made by Anne Colvin - the witness who was wrongly accused by Mr Sheridan's junior counsel, advocate Graeme Henderson, of having received an 18-month sentence for credit card fraud.

Quoting a report in the Herald newspaper, "After the trial last August, Ms Colvin complained to the Law Society about Campbell Deane, Mr Sheridan's solicitor, who would normally have instructed Mr Henderson's questioning.

She expected to discover the source of the claim against her, but was told that, as she was not Mr Deane's client, she could not see his explanation of events or the results of the investigation.

It has now emerged that Mr Sheridan has refused to waive his right to confidentiality with his solicitor in the case, thereby blocking efforts by Ms Colvin to find out more on the incident."

That's a bit of a strange explanation though, comparing my own experience with dealing with the Law Society of Scotland & their dubious investigations of crooked lawyers.

I understood that my complaint against Andrew Penman - LSC/94/1149, made in 1994, had established the right of a person with an interest to make a complaint & see all the evidence submitted by the lawyer in response to that complaint. At least, that's what I was told at the time, and certainly with many of the other complaints I have had to make over the years against lawyers who poorly served my family in some way or another, that rule always worked.

I wonder why now, the Law Society has changed it's tune for Anne Colvin, insisting that Mrs Colvin can't have access to the details of the investigation unless Tommy Sheridan wave his right of confidentiality with Campbell Deane, his solicitor, whom he reputedly fired anyway, due to the accusations by Graeme Henderson.

I think Ms Colvin should go back to the Law Society and demand the information on the complaint, along with Deane's explanation of events ....

You can see how some of Mr Deane's case histories & the case against Findlay compare ... it's acceptable for a QC to make alleged jokes against religions (because some claim he wasn't acting in his capacity as a QC at the time), and it's acceptable for a QC to make false allegations against members of the public (because, in the Sheridan case, he was acting in his capacity as a QC at the time) - confusing ? yes- it all seems to be within the roles ... but what it tells us is that its acceptable for members of the legal profession to say what they like, when they like, no matter how racist, how bigoted, how sectarian, how crooked, or how untrue, it may be.

Its high time to end this culture of 'do as you like' which the legal profession operate under.

Deane claims "It is understood Findlay was given the option of "putting his hands up" and paying a relatively modest fine, but flatly refused. He now faces prosecution at a formal disciplinary tribunal"

This from a source at the Faculty on the Findlay case :

Donald Findlay was given the option of a fine by the Complaints Committee, which had the power to pass sentence on him but instead decided to send his case to a Disciplinary Tribunal for sentencing - if Findlay agreed.

Findlay refused, so the Faculty reverted to rule 5 (7) e of the rules which puts the whole case back to a Disciplinary Tribunal headed by a retired judge.

This is possible, as my source said, under Rule 5 (7) d of the Faculty rules, which state that the Disciplinary Committee's powers under rule 5 (7) c give the Committee power to impose a maximum fine of £7,500 and a years suspension. The Disciplinary Committee must also be satisfied beyond a reasonable doubt of the charges before it can make a ruling.

The actual wording from the Faculty of Advocates regulations follows :

Action where facts disputed

5.(7) Having considered the facts found, the evidence obtained by the Investigating Committee and any comment thereon, the Complaints Committee may:

(c) uphold the complaint in whole or in part and impose, if it thinks fit, one or more of the penalties set out in rule 6 below;

(d) with the consent of the member, uphold the complaint in whole or in part and remit it to the Disciplinary Tribunal for the imposition of one or more of the penalties set out in rule 11 below; or

(e) remit the complaint to the Disciplinary Tribunal for determination and disposal.

Well, if everyone is interested in a fair hearing of this complaint, they should refrain from public comment, either praising or critisising Findlay for what he said, but I think Deane & Massie's articles should at least, be entered into the Faculty's Disciplinary Hearing on this case - to ensure fairness for all. After all, usually the lawyer who is the subject of the complaint, quotes any press coverage or comments a client makes ... so why not be thorough and include what appears to be articles sympathising with Mr Findlay.

So we are back to the point - On orders from the legal profession, it's ok for the press to report on stories which praise members of the legal profession in client complaints, but they can't report cases where the client has brought the complaint to the attention of the press.

Just what is that all about, Campbell ? Isn't that restriction of Free Speech for us poor members of the public when we are up against your colleagues ? or is it a policy straight out of Drumsheugh Gardens designed to minimise press coverage on stories like lawyers who go out to rape children ?

The following articles from the Scotsman, and lastly from the Herald on the Sheridan case, for your reading.

Have you heard the one about freedom of speech?

ODD-one-out round. Donald Findlay QC, Chief Constable John Vine, Gerald Ratner and the Times's political editor, Angus Macleod. The answer is that, while the first three have got into hot water for making jokes, the latter had a joke told about him without any consequences.

Last year at the Perth Bar Association dinner, Vine, a former president of the Association of Chief Police Officers in Scotland, took the fateful decision to tell the audience a joke about bombs. It was the one about al-Qaeda fathers comparing notes about the careers of their suicide bomber sons with the punchline "Ah, kids, they blow up so quickly these days".

Gerald Ratner effectively killed his own jewellery company when he joked in a speech that one of his firm's products was "total crap", and boasted that some of its earrings were "cheaper than a prawn sandwich" and unlikely to last as long. The speech wiped an estimated £500m from the value of the company.

And of course Donald Findlay is back in the headlines for, among other things, telling a joke at a private function. He was reported to have said: "It's very smoky in here, has another f***ing Pope died?" Following complaints, the Faculty of Advocates agreed he was guilty of professional misconduct. It is understood Findlay was given the option of "putting his hands up" and paying a relatively modest fine, but flatly refused. He now faces prosecution at a formal disciplinary tribunal.

I have to say I have an element of sympathy for Findlay. As any after-dinner speaker will confirm, you need to gauge your audience. In both Ratner's and Vine's cases a room full of lawyers and businessmen were not the ideal. But Findlay was speaking to 140 Rangers supporters from the Loyalist stronghold of Larne, who had paid £22 each for the privilege of hearing him talk. They were there to be entertained by a lawyer with the gift of the gab. Arguably the basis of freedom of expression is such that it should never be restricted. Just because some people are offended should not mean that the joke should remain silent. And was anyone who heard the joke first-hand offended?

Findlay will argue that when he does after-dinner speaking he adopts an entirely different persona. He is not Donald Findlay QC, and surely the two can be separated? If not, then there would be an argument that the Faculty are discriminating against him having another job as an entertainer.

But I have the solution for Findlay's troubles. Give up the after-dinner speaking and get yourself a diary column in a newspaper. You see, last week Lord McPhail kicked out an action brought by award-winning journalist Angus Macleod, who had been described in a diary item as an inventor and compared to Alexander Graham Bell. While you can accuse a journalist of many things, that is a step too far.

McPhail held that the diary had been written for the reader's entertainment, and had contained elements of fantasy. So for all diarists out there, we now have the imperial standard measure of how to defame a judge. Write five pieces with elements of fantasy and then an item about a named judge being biased. I am sure those on the bench will agree it is just banter, after all.

Having the last laugh at PC brigade

GEORGE Orwell was interested in jokes, even if not making many himself. "It is interesting," he wrote, "to compare the 'Jew joke' with that other standby of the music halls, the 'Scotch joke', which superficially it resembles ... in general, the Jew is credited merely with cunning and avarice while the Scotsman is credited with physical hardihood as well. This is seen, for example in the story of the Jew and the Scotsman who go together to a meeting which has been advertised as free.

"Unexpectedly there is a collection, and to avoid this the Jew faints and the Scotsman carries him out. It would seem vaguely wrong if it were the other way about."

Setting aside the fact that the best Jew jokes have usually been told by Jews, just as the best Aberdeen ones have been told by Aberdonians, and nobody did more than comics such as Harry Lauder, Will Fyffe and Chic Murray - "a true Scotsman keeps the Sabbath, and anything else he can get his hands on" - to fix the stereotype of us as mean and grasping, one finds oneself, quite often, wondering just what it is still permissible to mock.

The distinguished QC, Donald Findlay, for instance, is in trouble again - hauled up before a disciplinary committee of his colleagues at the Faculty of Advocates, it seems - because he told a joke about the Pope at a dinner in Northern Ireland. It wasn't much of a joke, going apparently something like this: "It's awful smokey in here - has another ******* Pope died?"

Not terribly funny, but harmless enough, you might think, and probably went down quite well with most of his audience, consisting of either - I'm not quite clear on this point - members of a Rangers Supporters Club or the Orange Order. (No doubt there is some overlap anyway.) After all, people have been making jokes about His Holiness for centuries, probably since long before the Reformation. "Why does the Pope wear underpants in his bath?", small boys used to ask with a snigger. No doubt you can supply the answer.

Every schoolboy when I was young had an extensive repertory of jokes which began: "There was a Scotsman, an Irishman and an Englishman ..."

Few were very funny, I daresay; all followed the same pattern. The Englishman was sure of himself but stupid, the Irishman clever but silly, the Scotsman had the answer.

No doubt such jokes took a different form the other side of the Border, or across the Irish Sea. They were a variant of a joke I liked about the Greek, the Jew and the Armenian who paid a visit to a church or museum. "That was a really beautiful ruby," said the Greek afterwards, "I wish I had taken it." "Ah," said the Jew, "you wish that? I've got it." "You had it," said the Armenian.

In all cultures, too, there have been jokes about people deemed inferior. So we had the Irish joke, as in "an Irish dog was chewing a bone when its master called and it got up and hobbled away on three legs".

In Ireland itself the Irish joke is told - used to be told? -about Kerrymen; in the United States about Poles, in the old South Africa about a Boer farmer, a simpleton called van der Merwe.

For instance, van der Merwe goes to the cinema three days in succession to see the same film. Asked why, he explains that there's this chap who tries to leap on to his horse and falls off the other side; he wants to see if he's so stupid he'll do it again. All such jokes are in a way expressions of solidarity, of a shared culture; they are intended, if not consciously, to be reassuring.

Sometimes - as in the Aberdonian joke "two taxis crashed in front of His Majesty's Theatre and 15 people were taken to hospital" - they are exercises in self-deprecation, which are at the same time expressions of a sense of one's own superiority.

In the case of the Scots or Aberdonian joke told by a Scot or Aberdonian, or the Jew joke told by a Jew, the sense of superiority is demonstrated by the ability to laugh at oneself.

Otherwise, there is usually an element of affection in the mockery. True anti-Semites don't tell Jew jokes; they are too busy hating them. There were no Jew jokes in Nazi Germany.

Now, in our excessively sensitive time ethnic and sectarian jokes are frowned on. Indeed, they're forbidden. Even mild ones, such as Mr Findlay's, can get you into trouble, in his case because it seems to be aimed at all Roman Catholics and their reverence for the Pope, rather than at His Holiness himself.

But, of course, we still need jokes, laughter being essential to us. So what can you joke about? At what or whom may jokes be permissibly directed? Certain categories - Muslims and gays, for instance - are ruled out. So also, obviously, are the disabled and afflicted. Such jokes are regarded as either dangerous or in poor taste.

However, as an example of the way what is considered bad taste changes, the Royal Family is now regarded as fair game. So, very evidently, are politicians.

Since Spitting Image set the example, so-called alternative comedians have delighted in mocking individual politicians. In the Eighties, they could say what they liked about Margaret Thatcher. Now Tony Blair and George Bush are regularly pilloried, portrayed as buffoons and villains.

Is this healthier? Many will say it is because the objects of these jokes and insults are powerful. They may be right, but what is also clear is that such jokes, aimed at individuals rather than categories, are also crueller.

Jokes about categories of people are beyond the pale, even though categories are abstractions which can't be hurt. Jokes about individuals are deemed OK, even though individuals feel pain and bleed.

Political correctness, which was intended to make life pleasanter by forbidding stigmatisation has, paradoxically, resulted in a nastier form of humour. Very rum.

Witness not allowed to see results of Sheridan investigation
TOM GORDON, Scottish Political Correspondent January 04 2007

A witness in the Tommy Sheridan defamation trial, who complained after it was wrongly implied in court she had a criminal record, has been told she cannot see the results of the Law Society's investigation into the matter.

Anne Colvin, a businesswoman who claimed to have seen the politician having sex with a prostitute, was wrongly accused by Mr Sheridan's junior counsel, advocate Graeme Henderson, of having received an 18-month sentence for credit card fraud.

It has now emerged that Mr Sheridan has refused to waive his right to confidentiality with his solicitor in the case, thereby blocking efforts by Ms Colvin to find out more on the incident.

After the trial last August, Ms Colvin complained to the Law Society about Campbell Deane, Mr Sheridan's solicitor, who would normally have instructed Mr Henderson's questioning.

She expected to discover the source of the claim against her, but was told that, as she was not Mr Deane's client, she could not see his explanation of events or the results of the investigation.

Ms Colvin asked Mr Sheridan to waive confidentiality to allow her to see the paperwork, but he refused.

She said: "I would ask Mr Sheridan to reconsider and waive confidentiality. It would also clear his name. If he did not suggest the question to Mr Henderson then he has nothing to worry about."

Martha Rafferty, Ms Colvin's solicitor said: "Honesty goes to the heart of any defamation case and she thought this was a clear attempt to besmirch her character.

"Having lodged a complaint with the Faculty of Advocates and the Law Society, she is still none the wiser why the question was asked, and considers this most unsatisfactory.

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